Opinion
W.C. No. 4-225-443
September 6, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) which concluded that the claimant sustained an injury arising out of and in the course of her employment, and awarded benefits and penalties. We affirm.
This claimant filed a claim for compensation in connection with injuries she sustained on September 6, 1994, while returning from lunch. The claimant tripped and fell in front of the employer's office when she stepped in a hole created by missing bricks in the sidewalk. The hole was located between a public parking lot and the front door of the employer's premises.
The ALJ found that the claimant's normal working hours were from 8:30 a.m. to 12.30 p.m. and 2:30 p.m. to 6:30 p.m, and that, pursuant to the employer's policy, it was appropriate for the claimant to be back from lunch at 2:20 p.m. The ALJ also determined that the claimant was allowed to park her personal vehicle in front of the employer's chiropractic office, and did so on September 6, because the employer was out of the country and the claimant had given the substituting chiropractic doctor her key to the back door of the employer's premises. In so doing, the ALJ rejected the respondents' contention that the claimant violated the conditions of her employment by giving the visiting chiropractic doctor her back door key.
Based upon these findings of fact, the ALJ determined that the claimant established a causal connection between the conditions under which her work was performed, and her injuries. Furthermore, expressly relying upon State Compensation Insurance Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (Colo. 1960), the ALJ concluded that the claimant's injuries arose out of and in the course and scope of employment.
On review, the respondents contend that the ALJ erred as a matter of law in concluding that the claimant's injuries arose out of and in the course of her employment. We disagree.
An injury "arises out of and in the course of" employment when it is sufficiently related to the conditions and circumstances under which the employee usually performs his or her job functions. City of Northglenn v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CA11328, April 20, 1995), citing City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). The "arising out of" requirement is met when the origins of the injury are work-related, and the injury is sufficiently related to the work to be considered part of the employee's services to the employer. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). In this regard, the injury does not have to be the result of a mandatory employment activity. University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953); City of Northglenn v. Industrial Claim Appeals Office; supra. Rather, it is sufficient if the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of the particular employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995). This includes discretionary or "optional" activities on the part of the employee which are devoid of any duty component and unrelated to any specific benefit to the employer. City of Boulder v. Streeb, supra; L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992), rev'd on other grounds 867 P.2d 875 (Colo. 1994) (claimant sustained fatal compensable injuries while traveling between the job site and the employer's main office to pick up a paycheck).
Further, as expressly noted by the ALJ, our Supreme Court held in State Compensation Fund v. Walter, supra, that accidents occurring at or enroute to parking lots provided by an employer, for the benefit of its employees, are compensable even if the injury occurs going to or from employment on public property. Walter involved a claimant who suffered compensable injuries while crossing a public roadway on his way from the employer's premises to the parking lot provided by the employer . In Friedman's Market Inc. v. Welham, 653 P.2d 760 (Colo.App. 1982), the claimant was fatally injured while crossing a set of railroad tracks which separated the employer's premises from the parking lot used by the claimant. The Welham court concluded that the claimant's injuries were compensable even though the parking lot was neither, owned, controlled or maintained by the employer. More specifically, the Welham court reasoned that the injuries were an exception to the "coming "to and from work rule," and thus compensable, because the employer purposely intervened in the claimant's personal choice of parking by prohibiting its employees from parking in the private or public parking lots adjacent to its premises. Friedman's Market Inc. v. Welham, 653 P.2d 762; see also Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (1976); Perry v. Crawford Company, 677 P.2d 416 (Colo.App. 1983).
We agree with the ALJ that the facts found in this claim are not significantly distinguishable from the facts in Walter. The ALJ inferred that when the claimant gave her back door key to the visiting doctor the claimant was required to park in front of the employer's premises and enter the front of the employer's premises by using her front door key. The ALJ also credited the claimant's testimony that the employer authorized her to park in front of the building as long as she did not park in the two or three spaces directly in front of the door, and that the claimant complied with this restriction on September 6. Because, the claimant was injured while crossing a public sidewalk on the normal route to the front door of the employer's premises from the parking spaces the employer directed the claimant to use, the claimant's injuries arose during her performance of a function inherently related to her employment. Moreover, the damaged condition of the sidewalk created a "special hazard" which the claimant was required to traverse.
The ALJ also found that the claimant satisfied the "course of employment" requirement because the injury occurred within the time and place limits of the employment. Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991). In so doing, the ALJ implicitly credited the claimant's testimony that the employer instructed her to be at work prior to the actual time her paid workday began. Tr. pp. 7, 8, 55.
The claimant's testimony constitutes substantial evidence to support the ALJ's finding, and we have no authority to interfere with the ALJ's credibility determinations or her assessment of the weight and sufficiency of the evidence she found persuasive. See Walsh v. Industrial Commission, 34 Colo. App. 371, 527 P.2d 1180 (1974) (claimant suffered compensable injuries while walking to work when the employer instructed her to get into work by any means); Kitchens v. Department of Labor, 29 Colo. App. 374, 486 P.2d 474 (1971) (claimant's injuries occurring while he waited in the employer's parking lot for transportation provided by the employer to work site were compensable); Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970).
The respondents' remaining arguments to the contrary are unpersuasive. Therefore, we perceive no grounds to set aside the ALJ's determination that the claimant's September 6 injuries are compensable. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
IT IS THEREFORE ORDERED that the ALJ's order dated, January 4, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed September 6, 1995 to the following parties:
Karie M. Donahue, 19094 E. Arizona Pl. Aurora, CO 80017
Michael J. Urness d/b/a City Center Chiropractic, 578 S. Chambers Rd., Aurora, CO 80017
State Farm Fire Casualty Co., 4380 S. Syracuse St., Ste. 200, Denver, CO 80237
Marty Linnett, Esq., and Eugene A. Duran, Esq., 4155 E. Jewel Ave., Ste. 500, Denver, CO 80222, (For the Claimant)
Mark A. Sares, Esq., 9191 Sheridan Blvd., #310, Westminster, CO 80030 (For the Respondents)
BY: _______________________